Civil Rights Appellate Clinic Cases and Projects

Below are links to briefs and court opinions for the Civil Rights Appellate Clinic’s cases. Additional briefs filed in Supreme Court cases may be found at SCOTUSblog.

Ronnie Jones, et al. v. The City of Boston, 15-2015In Ronnie Jones, et al. v. The City of Boston, 15-2015, the clinic wrote an amicus curiae brief supporting the claims of disenfranchised African American officers at the Boston Police Department that they were adversely affected by hair follicle drug testing that generated false positives indicating ingestion of cocaine. Despite serious questions in the scientific community regarding whether hair follicle testing can distinguish between actual drug ingestion and external contamination, the Boston Police Department continues to utilize the process.

The officers in Jones are appealing a summary judgment decision granted by the Federal District Court. The plaintiffs have not only introduced evidence demonstrating that hair testing has a greater likelihood of showing false positives for minority officers, but also that hair testing is unreliable in general, a finding supported by the rulings of the Massachusetts Civil Service Commission.

The clinic supports the plaintiffs’ position in its brief, and further argues that the court did not apply the proper standard for summary judgment and failed to consider what Congress aimed to achieve when it codified disparate impact law in Title VII of the Civil Rights Act. The clinic submitted the Jonesamicus brief on behalf of numerous organizations committed to the rights of minority workers, including the National Employment Lawyers Association, the Equal Justice Society, Justice at Work, and the American Civil Liberties Union of Massachusetts. On April 22, the court granted the clinic’s motion for leave to file and accepted the amicus brief.

Carlton Baptiste v. Loretta E. Lynch No. 14-4476
In July 2015, the U.S. Court of Appeals for the Third Circuit appointed the clinic to represent Carlton Baptiste, who is subject to an Oct. 15, 2014, order of removal from the Board of Immigration Appeals for crimes committed in 1978 and 2009. His attempted removal is governed by section 242 of the INA. Baptiste, 76, is facing deportation to his native country of Trinidad, where he has not resided since 1965. He has lived in the United States since then and has been a lawful permanent residence since 1972. His entire family resides in the U.S.

As counsel for Baptiste, the Clinic sent an opening brief to the Third Circuit and just recently filed a reply brief in response to the Department of Justice. The brief explains why the Board of Immigration Appeals cannot deport Baptiste, arguing, in particular, that the portion of the Immigration and Nationality Act (INA) under which Baptiste would be deported is unconstitutionally void for vagueness.

The Supreme Court recently struck down a statute with similar deficiencies in Johnson v. United States. More recently, relying on Johnson, the Fifth, Seventh, and Ninth Circuits ruled in accordance with the Clinic’s stance that the law upon which Baptiste’s removal is based is unconstitutional. The Clinic hopes to persuade the Third Circuit to follow these other federal courts and similarly strike down this portion of the INA.

Baptiste’s case is currently pending before the Third Circuit. The Clinic recently petitioned for oral argument in this case, which has not yet been scheduled.

Lopez, et al. v. City of Lawrence, et al. No. 14-1952
The Clinic filed an amicus curiae brief on behalf of the National Urban League and the NAACP with the U.S. Court of Appeals for the First Circuit arguing in favor of the employees in the matter of Lopez, et al. v. City of Lawrence, et al.

The case addresses how to achieve equal employment opportunity for racial minorities in local law enforcement, which is an extremely important and divisive issue, as recent events involving police departments across the country have demonstrated. The U.S. Department of Justice and a number of local civil rights organizations have also filed amicus briefs on behalf of the plaintiffs in the case.

In Lopez, the plaintiffs are black and Hispanic police officers who took the Massachusetts police sergeant’s promotional exam in their local municipalities between 2005 and 2008 and were not promoted. The plaintiffs have demonstrated that the promotional exams used during those years had a disparate impact on racial minorities, meaning that, although there was no evidence of intentional discrimination, the tests selected applicants for promotion in a discriminatory pattern. In short, the tests promoted significantly more whites than blacks or Hispanics. The defendants are local municipalities, including the City of Boston and surrounding towns, that utilized the tests created by the Massachusetts Human Resources Division and made promotions based on the tests’ results.

The First Circuit will decide whether the trial court used the proper standard to analyze the burden of proof associated with disparate impact claims. The case has been argued and we are currently awaiting the Court's decision.

Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13-1019
The Clinic filed an amicus curiae brief with the U.S. Supreme Court in the matter of Mach Mining, LLC v. Equal Employment Opportunity Commission. The Clinic was counsel of record and filed the brief on behalf of six national public interest groups: the Impact Fund, the National Employment Lawyers Association (NELA), AARP, Asian Americans Advancing Justice – Asian Law Caucus, Disability Rights California, and Public Counsel. These organizations represent employees, workers, consumers, persons with disabilities, and civil rights plaintiffs, who often must depend on the EEOC to vindicate their rights.

As counsel for amici, the Clinic supported the position taken by the U.S. solicitor general on behalf of the EEOC further demonstrating how an affirmative defense and judicial review of conciliation efforts would contradict the terms of Title VII, which impose criminal penalties on persons who disclose confidential conciliation communications; how an affirmative defense could unfairly punish victims of discrimination represented by the EEOC by having their suits dismissed for no fault of their own; and how district courts have the authority to encourage further conciliation if they determine the EEOC’s initial efforts were insufficient.

DeMasters v. Carilion Clinic et al. No. 13-2278
Acting as amicus curiae, the Clinic, representing the National Employment Lawyers Association, filed a brief with the U.S. Court of Appeals for the Fourth Circuit, advocating that employees who assist a co-worker in utilizing an employer’s anti-harassment policies and procedures should be protected from retaliation under both the participation clause of Title VII’s anti-retaliation provision and under the Supreme Court’s application of the retaliation provisions to third-party plaintiffs in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011). In this case, J. Neil DeMasters was an Employee Assistance Counselor employed by Carilion Clinic. DeMasters counseled another employee, who was a victim of severe sexual harassment, and assisted him in utilizing Carilion’s sexual harassment reporting procedure. Although DeMasters simply followed Carilion’s own sexual harassment reporting policy, the company fired DeMasters, noting that he was terminated for not considering the “best interests of Carilion” and for “exposing Carilion to liability for sexual harassment.”

In response, DeMasters filed suit in the U.S. District Court for the Western District of Virginia, arguing that he had been unlawfully retaliated against under Title VII. The district court disagreed, and dismissed DeMasters’ case on a 12(b)(6) motion to dismiss, breathing unfortunate life into the old adage “no good deed goes unpunished.” Recognizing the chilling implications this decision would have on employees assisting one another in utilizing an employer’s own anti-harassment policies and procedures, the Clinic and its Associates felt compelled to advocate for increased Title VII protection for employees such as DeMasters. As Jordan Feist, a third-year law student and Clinic Associate, explained, “taking on the DeMasters case was important to ensure that employees who help their co-workers identify and report sexual harassment are protected from employer retaliation.” In addition to addressing the critical issue of using internal mechanisms to report harassment, Scott Stedjan, also a third-year student, stated that “we wanted to take on this case because it gives the Fourth Circuit its first opportunity to apply the Supreme Court’s holding in Thompson and make it clear that employers cannot punish third parties as a means to silence those who were discriminated against.”

It was critical for the Clinic to file an amicus brief in this case “to lend a stronger voice to issues that the Fourth Circuit needs to reconsider,” according to Clinic Associate Cynthia Bubniak (‘15). The EEOC agreed with the assessment of Clinic Associate’s and filed its own amicus brief with the Fourth Circuit, echoing many of the critical arguments raised in the Clinic’s brief.

In addition to Jordan and Cynthia’s contributions, Clinic Associates SaraAnn Bennett (‘14), Brittany Mouzourakis (‘14), Chad Stevenson (‘14), and Dwayne Wright (‘15) worked collaboratively to co-author the Demasters amicus brief under the supervision of Clinic Director Michael Foreman. The case was argued on October 29, 2014 in the Fourth Circuit wherein the Court ruled in favor of DeMasters remanding the case.

Township of Mount Holly, et al., v. Mt. Holly Gardens Citizens in Action, Inc., et al. No. 11-1507
Penn State Law’s Civil Rights Appellate Clinic filed an amicus curiae brief on behalf of The Leadership Conference on Civil and Human Rights (The Leadership Conference) in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., which was set for oral argument before the United States Supreme Court on December 4, 2013 but the case settled just before the Argument. The Leadership Conference is a coalition comprised of over 200 of the nation’s leading civil rights groups, such as the American Civil Liberties Union, Amnesty International USA, Equal Justice Society, NAACP, National Urban League, and others. In addition to the 200 member organizations, four non-member organizations also signed on to the brief.

Clinic students worked in a collaborative effort to produce the brief with very little lead time. The Clinic was able to draft the brief, complete multiple rounds of edits, and submit a final draft to the printer on an expedited time line. “I’m amazed by the quality of work that we were able to produce and in such a short amount of time,” said Clinic student Elizabeth Ashbaugh, who is also a Comments Editor for the Penn State Law Review. “I am always impressed with the Clinic’s ability to write so well under pressure, and the long editing sessions are worth every minute when we remember that the words we write are reaching the Justices.”

In Mount Holly, the Township sought to redevelop a blighted urban neighborhood, The Gardens, comprised predominantly of low and moderate income households. Although about 21% of the Township’s residents were African American and 9% were Hispanic around the time the project began, according to the 2000 census, a much higher proportion of minority individuals resided in the Gardens — about 46% and 25%, respectively. Further, The Gardens was the only neighborhood in the relatively small town of Mount Holly with predominately minority residents. Respondents, current and former residents of The Gardens, brought suit under the Fair Housing Act (FHA) because the effect of the redevelopment project was to make housing unavailable to them based on their race.

The Supreme Court was posed to decide whether disparate impact claims are cognizable under the FHA. In other words, the Court was been asked to determine whether the FHA allows suits in cases where discrimination was unintentional, or whether only intentional discrimination claims are available. The Leadership Conference supports the continued recognition of disparate claims under the FHA. Rather than a traditional legal analysis, the amicus brief authored by the Civil Rights Appellate Clinic focuses on the historical and societal context of disparate impact claims under the FHA. The brief stresses the historical context in which Congress enacted the FHA--in the wake of Dr. Martin Luther King Jr.’s assassination. The FHA was intended to combat the effects of both intentional and unintentional housing discrimination in an effort to rid American society of urban minority ghettos. Because these segregated housing patterns continue to exist in the United States, disparate impact claims are still necessary to continue to move toward Dr. King’s dream of an equal society and to achieve the ultimate goals of the FHA.

The brief also demonstrates that disparate impact claims under the FHA have become a part of the fabric of the American society’s commitment to civil rights. Throughout the past four decades, every court of appeals to address the question has held that disparate impact claims are cognizable under the FHA. Further, the Department of Housing and Urban Development (HUD), the agency charged with interpreting and enforcing the FHA, has agreed. The brief argues that the Court should ratify the interpretation of the FHA advanced by the courts of appeals and HUD to continue to protect minorities and other classes from both intentional and unintentional housing discrimination. The case was settled prior to oral argument.

Anthony Smith v. John Wilson et. al. Supreme Court Docket 12-1491
The Clinic, representing Anthony Smith, filed a petition for certiorari asking the United States Supreme Court to determine whether § 1981 and Title VI are violated if race is a motivating factor in an adverse decision. For over ten years, Mr. Smith offered his towing services to the town of Beloit, Wisconsin. While the jury found that Mr. Smith’s race was a motivating factor in his not being selected, he was denied any type of relief. The lower courts believed that under their interpretation of the applicable law, the courts were powerless to do anything unless Mr. Smith could show that “but for” his race he would have been selected. The district summed up the case this way: “Certainly, in this day and age, when some believe, or want to believe, that racism, at least blatant racism, is a thing of the past, it must be all the more painful to learn that one’s worst suspicions are true when it come[s] to the motives of a public official, particularly if the official is the chief of police. That is what happened to [Anthony Smith].” The Court recently denied the petition.

Nassar v. University of Texas Medical Center, Supreme Court Docket No. 12-484
The Clinic filed an amicus curie brief on behalf of The National Employment Lawyers Association (NELA)and 18 other national advocacy groups including The Leadership Conference on Civil and Human Rights, AARP, the American Association for Justice, the Anti-Defamation League, Friends of Farmworkers, Gender Justice, The Legal Aid Society — Employment Law Center, National Employment Law Project, and the National Partnership for Women & Families.

The retaliation provision of Title VII of the Civil Rights Act of 1964 is the crux of the case; at issue was what an employee must prove to show unlawful retaliation when the employer has multiple motives for an adverse employment action. The Court was asked to decide whether a plaintiff must show either but-for causation (i.e. that the employer would not have taken an adverse employment action but for this reason) or mixed motive for an adverse reaction (i.e. that an improper motive was one of several reasons for the employment action).

The Supreme Court heard argument in the case on April 24th and rendered a decision on June 24th holding that this provision of Title VII required an employee to show “but for” cause.

Vance v. Ball State University No. 11-556​
The Clinic, representing the National Employment Lawyers Association and AARP, filed an brief arguing that the Supreme Court should adopt as its rule of law the guidance set forth by the EEOC on how to define who is a supervisor for Title VII purposes. After Maetta Vance, the only African-American worker in the Ball State catering service, was repeatedly harassed and threatened at her job by white co-workers, she sued Ball State for permitting a hostile work environment to exist. Ms. Vance lost at the District Court, and the Seventh Circuit Court of Appeals, both finding that Ms. Vance’s accusations were not made against a supervisor, for purposes of Title VII liability. The Supreme Court, over the objections of the Solicitor General’s Office, granted certiorari, affirmed on June 24, 2013.

Ellis v. Ethicon, Inc. Nos. 10-1919, 12-1361​
The Clinic was appointed by the Third Circuit Court of Appeals as amicus, representing the interests of the plaintiff-appellee in a suit under the ADA. Theresa Ellis was a Senior Quality Engineer at Ethicon, a subsidiary of Johnson & Johnson, Inc. in New Jersey when she was injured in a car accident. After it became clear that she had suffered a permanent cognitive injury, a dispute arose with her employer regarding appropriate accommodations under the ADA. After Ms. Ellis won a substantial jury verdict, Defendant appealed to the Third Circuit. Ms. Ellis was unrepresented after the jury verdict, leading to the Clinic being appointed. While not representing Ms. Ellis, the Clinic represented her interests and the correct rule of law.

Following the Third Circuit’s appointment, clinic students parsed their way through thousands of pages of the lower court's record, examined exhibits, and analyzed pre- and post-trial briefs to become experts on the issues involved. The clinic filed two briefs and Professor Foreman argued the case on June 25, 2013, to a panel of three judges.

Just weeks after oral argument, the panel affirmed the jury finding that Ms. Ellis was a victim of intentional discrimination based upon her disability and affirmed that the lower court had decided upon the correct relief for Ms. Ellis. On that point the court was clear "we agree that reinstatement is a proper remedy. The parties entered into a settlement following remand.

Carder v. Continental Airlines, Inc. 10-1546​
The Civil Rights Appellate Clinic paved the way for Congress to explicitly outlaw workplace harassment because of military service. The clinic teamed up with Pilot Law, P.C. to serve as co-counsel in Carder v. Continental Airlines. In Carder, a group of pilots for Continental Airlines filed suit under the Uniform Services Employment and Reemployment Rights Act USERRA alleging that the airline created a hostile work environment for employees who also served in the military. The clinic drafted a Petition for Writ of Certiorari urging the United States Supreme Court to clarify USERRA’s language and declare that the statute prohibited hostile work environments based upon military status. The petition was ultimately denied, but the clinic’s advocacy led the Department of Labor to recommend that Congress amend USERRA. Congress quickly did so, in a bipartisan action that now protects reservists and National Guard members from facing a hostile work environment for fulfilling their military obligation.

Coleman v. Maryland Court of Appeals No. 10-1016​
Is a state immune from suit for damages when it declines to give its employee the self-care leave mandated by the Family and Medical Leave Act (FMLA)? The answer will come soon from the United States Supreme Court, thanks to the Civil Rights Appellate Clinic. The clinic joined as co-counsel in Coleman v. Maryland Court of Appeals and was instrumental in getting Mr. Coleman’s petition for certiorari granted. The clinic drafted and filed petitioner’s merits brief and reply to respondent’s brief, arguing that the FMLA’s self-care provision validly abrogates the states’ Eleventh Amendment immunity. Then, the clinic helped Clinic Director Michael Foreman prepare for his oral argument before the Court. The transcript of Professor Foreman’s January 11, 2012, argument can be found at http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1016.pdf and the audio recording of the argument can be heard at http://www.oyez.org/cases/2010-2019/2011/2011_10_1016#argument.

The Court issued its opinion in Coleman v. Maryland Court of Appeals on March 20, 2012. In a plurality decision, the Supreme Court affirmed the Fourth Circuit’s holding. The plurality opinion explains that while it is clear that workplace gender discrimination has been and continues to be a major problem in our country, the legislative record failed to contain sufficient evidence indicating that the states were engaging in gender discrimination in the granting of self-care leave. Therefore, according to the plurality, Congress did not validly abrogate the states’ sovereign immunity when it enacted the self-care provision of the FMLA. In a rare move, Justice Ginsburg read her dissenting opinion from the bench. The dissent, joined by three other justices, mirrors the arguments set forth by petitioner and its amici.

Ash v. Tyson No. 08-16135-BB​
The Civil Rights Appellate Clinic has joined the NAACP Legal Defense Fund and the New York Law School Racial Justice Project in urging the Eleventh Circuit to clarify when the use of the word “boy,” directed at black employees, is evidence of racial bias. In Ash v. Tyson, a white employee with little experience was promoted to a management position at a Tyson Foods plant instead of John Hithon, a black employee who had worked a the factory for many years. A jury awarded Mr. Hithon over $1 million, but the Eleventh Circuit overturned the verdict. The Clinic joined an amicus brief recommending that the court rehear the case en banc. Noted civil rights leaders, many of whom were contemporaries of Dr. Martin Luther King, Jr., filed the brief. This case has been before the Eleventh Circuit four times and the Supreme Court once. It is similar to the appeal that the Clinic pursued in Ford v. Mansfield.​

Thompson v. North American Stainless, LP No. 09-291​
In Thompson, the Supreme Court clarified the scope of Title VII’s anti-retaliation provision. The Clinic filed an amicus brief on behalf of six national organizations in support of Eric Thompson, arguing that North American Stainless violated Title VII when it fired Thompson after his fiancé complained of sex discrimination. The Supreme Court ruled unanimously in Thompson’s favor. It held that the anti-retaliation provision prohibits any employer action that might dissuade a reasonable worker from making or supporting a charge of discrimination, and that Thompson could proceed with his suit against North American Stainless.

Ford v. Mansfield No. 10-1254​
Michael Ford, an African American, was terminated from his position as a building manager at the Horizon House in Arlington, Virginia. He filed suit, arguing that he was fired in violation of 42 U.S.C. § 1981, which prohibits race discrimination in the making and enforcement of contacts. Mr. Ford argues that the defendants interfered with his employment with Horizon House because of his race. The Clinic represented Mr. Ford before the Fourth Circuit Court of Appeals, arguing that the district court incorrectly dismissed his lawsuit without permitting a jury to determine whether Mr. Ford was fired because of his race. The Fourth Circuit ultimately affirmed the district court.​

Staub v. Proctor Hospital No. 09-400​
In Staub, the Supreme Court determined that, under the Uniformed Service Employment and Reemployment Rights Act, an employer may be held liable based upon the unlawful intent of officials who influenced or caused an adverse employment action, even though those employees did not make the final employment decision. The Clinic served as co-counsel on behalf of three civil rights organizations and filed an amicus brief in support of Vincent Staub arguing that the employer should be held liable under such circumstances.

Rent-A-Center v. Jackson No. 09-497​
The Clinic, representing six prominent civil rights organizations, filed an amicus brief arguing that district courts should determine the enforceability of an arbitration agreement before a party is compelled into arbitration over employment matters. The Supreme Court held that under the Federal Arbitration Act, the arbitrator, and not the district court, determines the enforceability of the arbitration agreement.

​Lewis v. City of Chicago, Supreme Court Docket No. 08-974
The Clinic served as co-counsel in filing an amicus brief on behalf of two non-profit advocacy groups in support of the Petitioners. The Clinic took the position that the timing period for filing in a lawsuit that challenges a test that has a discriminatory disparate impact begins to run each time the test is used. The Supreme Court unanimously agreed.

Gregory v. Dillard's, Inc. 09-322
In Gregory, a group of African-Americans filed a lawsuit claiming that the department store Dillard’s in Columbia, Missouri violated the Civil Rights Act of 1866 by creating or allowing harassment designed to deter them from purchasing merchandise. After the Eighth Circuit Court of Appeals dismissed their suit, the Clinic was co-counsel for the plaintiffs in filing a Petition for Certiorari in the Supreme Court. Ultimately, the Supreme Court declined to hear the case.

Ricci v. DeStefano Nos. 07-1428, 08-328
The Clinic, representing four national civil rights organizations, filed a brief arguing that the City’s actions did not violate the Equal Protection Clause when it threw out the results of a test that would have allowed promotion for a disproportionate number of non-minority firefighters. The Court determined 5-4 that the city of New Haven, Connecticut violated Title VII, but it did not address the Equal Protection issue.

Gross v. FBL Financial Services, Inc. No. 08-441
The Clinic, as counsel of record for five civil rights groups, filed an amicus brief arguing that plaintiffs filing suit under the Age Discrimination in Employment Act should be able to prove their case with circumstantial evidence of discrimination. The Court acknowledged that an employee may prove discrimination through circumstantial evidence but held that an ADEA plaintiff must show that age was the but-for cause of the employer’s decision.

14 Penn Plaza, LLC v. Pyett No. 07-581
In Pyett, the Clinic filed an amicus brief on behalf of seven national civil rights groups arguing that a collective bargaining agreement’s provision waiving an employees’ right to file employment discrimination lawsuits was invalid. The Supreme Court held that such clauses are enforceable.